Can I Get a DUI for Sitting in a Parked Car While Drunk?

The DUI laws of many states apply if you were in "actual physical control" of a vehicle—even if you weren’t actually driving.

By , Attorney · Sandra Day O’Connor College of Law

Driving under the influence of alcohol or drugs is illegal in every state. But what if you get caught drunk behind the wheel of a parked car?

It surprises many drivers (especially those who pull over to "sleep it off") to learn that the DUI laws of most states also prohibit drivers from "operating" or being in "actual physical control" of a car while under the influence. In other words, you can get a DUI without actually driving.

Can You Get a DUI in a Parked Car?

In a few states, including California, you can't get a DUI unless you actually put your car in motion. In these states, police don't necessarily need to witness you driving to arrest for a DUI. However, police do need some evidence (a witness's statement, for instance) to conclude that you were in fact driving while under the influence.

In most other states, actual driving isn't required and it comes down to whether you were "operating" or in "actual physical control" of your vehicle.

Were You Operating or in Actual Physical Control of the Vehicle?

State laws differ, but most states require juries to look at the "totality of the circumstances" to determine whether the drunk motorist was operating or in actual physical control of the vehicle. In other words, the jury is supposed to consider all the surrounding circumstances. These often include the:

  • location of the driver
  • location of the car
  • location of the keys
  • whether the car's engine was running, and
  • whether the driver was awake or asleep.

Basically, the jury is being asked to decide whether the motorist was close enough to be able to set the car in motion that it presented a danger to the public.

Where Did Police Find the Driver?

A driver's physical proximity to the vehicle—more specifically, the ignition of the vehicle—is an important consideration in determining whether the driver was operating or in actual physical control.

The closer the driver was to being able to start up the car, the more likely the jury is to convict. So, for instance, the chances of conviction are generally higher for a motorist who was in the driver's seat than a motorist who was asleep in the backseat.

Where Was the Car Parked?

Car location is another key factor juries consider. If you were parked in your own driveway, you might escape responsibility. But a jury isn't likely to be sympathetic to a motorist found parked in the middle of a roadway or on a sidewalk downtown.

Basically, the car's location gives the jury an indication of whether the person was driving before police showed up and how much of a risk the person posed to the public.

Where Were the Keys?

Most cars require keys to start the engine. So, the location of the keys is important for assessing whether the driver was operating or in actual physical control of the vehicle.

If the driver didn't have keys readily accessible, a jury might be unwilling to convict. But a driver who had the keys within reach or in the ignition won't likely do well with this issue at trial.

Was Car's Engine Running?

Being caught with the car engine running generally hurts a motorist's chances of beating a DUI charge. With the engine running, the motorist is just a step away from putting the car in gear and driving away.

However, other circumstances, including the driver's location, might also come into play here. For example, a motorist who was found asleep in the back seat on a cold night might be able to convince a jury that it was necessary to keep the engine running for heating the interior of the car.

Was the Driver Awake or Asleep?

Some states have a bright-line rule that says a driver must be awake to be operating or in actual physical control of a vehicle. But in most states, whether a driver was awake or asleep is just another factor for the jury to consider in looking at the overall situation.

Talk to a DUI Attorney

This article gives an overview of state DUI laws. But the laws of each jurisdiction are different. And the facts of a case have everything to do with the outcome. If you've been arrested for driving under the influence, get in contact with an experienced DUI lawyer who can explain how the law applies to the facts of your case.

Talk to a DUI Defense attorney
We've helped 115 clients find attorneys today.
There was a problem with the submission. Please refresh the page and try again
Full Name is required
Email is required
Please enter a valid Email
Phone Number is required
Please enter a valid Phone Number
Zip Code is required
Please add a valid Zip Code
Please enter a valid Case Description
Description is required

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you